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Media Alerts - Hoven v. Walgreen Co. - Sixth Circuit
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July 16, 2014
  Hoven v. Walgreen Co. - Sixth Circuit
Headline: Sixth Circuit upholds Walgreen's firing of employee who shot at armed gunmen during store robbery, rejecting claim that the termination violated public policy.

Areas of Law: Employment law; the United States Constitution; the Michigan Constitution; and Michigan Compiled Laws.

Issue Presented: Did Walgreen violate Michigan public policy when it fired an at-will employee for shooting at a masked gunman during a store robbery, in self-defense, using a handgun for which the employee had a permit?

Brief Summary: A Walgreen employee sued for wrongful termination of employment in violation of public policy after he fired his handgun in self-defense during a robbery at his Walgreen store. Walgreen removed the action to the federal court. The district court granted judgment on the pleadings in favor of Walgreen. The employee appealed. The Sixth Circuit affirmed the district court and held that the employee's termination for exercising his rights of self-defense, defense of others, and carrying a concealed weapon did not violate public policy and thus was not actionable under Michigan law. The Sixth Circuit concluded that Michigan's Self-Defense Act did not confer any general right to engage in self-defense or defense of others.

Extended Summary: Jeremy Hoven, a full-time pharmacist at Walgreen, first experienced an armed robbery in 2007. After the robbery, Hoven asked Walgreen to improve store security. When Walgreen denied his request, Hoven underwent training and got a concealed-weapon permit. He then began carrying a concealed handgun at work.
About three years after the first robbery, Hoven was working the overnight shift when two masked individuals with guns entered the store. Hoven tried to dial 911, but one of the masked gunmen pointed a gun at him. When Hoven saw the masked gunman's finger jerking on the gun's trigger, Hoven drew his own weapon and fired several times. No one was injured in the incident.

After a company investigation, Walgreen officials told Hoven that he had violated the company's nonescalation policy. Walgreen gave Hoven the option to resign or be terminated. He refused to resign, and Walgreen fired him. Hoven sued Walgreen alleging that his termination violated seven public - policy considerations, which the Sixth Circuit addressed.
First, the Court relied on precedent that established three instances when a termination of employment would violate public policy: (1) The employee is discharged in violation of an explicit legislative statement prohibiting discharge of employees who act in accordance with a statutory right or duty; (2) the employee is discharged for the failure or refusal to violate the law in the course of employment; or (3) the employee is discharged for exercising a right conferred by a well-established legislative enactment. McNeil v. Charlevoix Cnty., 772 N.W.2d 18, 24 (Mich. 2009).

Applying these three factors to the employee's case, the Court found no cause of action under the first two instances, but it did consider whether the employee's claims fit under the third instance: exercising a right conferred by a well-established legislative enactment.

To begin, the Sixth Circuit stated that under Michigan law a private actor does not violate public policy when it fires an employee based on a constitutional provision. According to the Sixth Circuit, although the Second Amendment of the United States Constitution and the Michigan Constitution limit state interference with an individual's right to bear arms, private actors are not bound by those limitations. Therefore, the Court found that the employee's federal and state constitutional arguments were not valid.

The Sixth Circuit also rejected the employee's reliance on the Michigan Criminal Jury Instructions and the Michigan Self-Defense Act. The Court held that the employee's arguments were unpersuasive, as the criminal jury instructions were not a legislative enactment, and there is no general "right" to engage in self-defense. Rather the law conferred a right to receive a rebuttable presumption of self-defense. Therefore, the Court rejected these public-policy claims.

Finally, the Sixth Circuit considered the employee's argument about the state's concealed-weapon permit law, which states that an employer may not prohibit employees from receiving a license to carry a concealed weapon and carrying a concealed weapon. The court noted that a section of that statute expresses that the right to carry a concealed weapon in the course of employment may be limited. Therefore, Walgreen was permitted to limit an employee's use of a concealed weapon on its premises. Accordingly, the Court held that the concealed-weapon permit law did not support the employee's claim.

For all these reasons, the Court affirmed the district court's grant of judgment on Walgreen's pleadings.

Panel: Judge Moore, Gibbons, and Sutton

Date of Issued Opinion: June 2, 2014

Docket Number: 13-1011

Decided: Petition for review of a motion for judgment on the pleadings in favor of Walgreens

Counsel: ARGUED: Daniel D. Swanson, SOMMERS SCHWARTZ, P.C., Southfield, Michigan, for Appellant. Adam S. Forman, MILLER, CANFIELD, PADDOCK AND STONE, P.L.C., Detroit, Michigan, for Appellee. ON BRIEF: Daniel D. Swanson, Jesse L. Young, SOMMERS SCHWARTZ, P.C., Southfield, Michigan, for Appellant. Adam S. Forman, MILLER, CANFIELD, PADDOCK AND STONE, P.L.C., Detroit, Michigan, for Appellee.

Link to full Opinion:

Case Alert Author: Ogenna Iweajunwa

Author of Opinion: Judge Moore

Case Alert Circuit Supervisor: Professor Erika Breitfeld

    Posted By: Mark Cooney @ 07/16/2014 03:23 PM     6th Circuit  

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